ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2019 DOCKET NUMBER: AR20160014736 APPLICANT REQUESTS: to terminate his Survivor Benefit Plan (SBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656 (Data for Payment of Retired Personnel) * discharge orders * letter from spouse * State of Missouri marriage certificate FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * he declined SBP on 30 December 2012 * he was unable to get an appointment to complete the paperwork prior to his discharge * this was due to government back log and furloughs * he was told by his retirement services advisor the declination should be okay but if it was not approved to re-decline in 2 years and not make payments they would be waived at second declination 3. The applicant was placed on the retired list from the US Army Reserves on 15 November 2013. He made his initial SBP election on 30 December 2012 per his DD Form 2656. He declined to participate in the SBP. His wife signed the document at the time and the signature was notarized. The applicant provides a copy of the election form, DD Form 2656. The same form is present in his official military records. 4. Public Law 92-425, provides every member having a spouse and/or child(ren), who retired/transfers to the retired list is automatically covered under SBP at the maximum rate unless he/she elects otherwise before retirement or transfer to the retired list. 5. The applicant states he was unable to make his election prior to his retirement date due to no available appointments with the retirement services office and government furloughs. 6. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. 7. The applicant's spouse signed the original SBP election form and her signature was notarized. She also provided a letter for the Board to consider. The letter states, in part, she is fully aware of the cancelation of SBP by the applicant. She is still in concurrence with the cancellation of SBP. 8. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP. The spouse's concurrence is required. 9. The applicant's second anniversary date was 15 November 2015. 10. A correction giving effect to applicant and his spouse’s original decision to decline coverage would result in no premiums being owed and a refund of any premiums paid. A correction which terminates applicant’s coverage forfeits any premiums paid. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. He requested not to elect SBP coverage and his spouse concurred with that decision prior to his retirement date. Based upon the preponderance of evidence, the Board agreed the record should be corrected to show he did not elect SBP coverage, and all SBP payments should be reimbursed accordingly. BOARD VOTE: Member 1 Member 2 Member 3 :X :X :X Full Grant : : : Partial Grant : : : Formal Hearing Grant : : : Deny BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he declined SBP coverage with the concurrence of his spouse on 30 December 2012, and it was accepted and processed in a timely manner; and reimbursing him all SBP premium payments already made. 6/11/2019 X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. This law, as amended, also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elects otherwise before retirement or transfer to the retired list. 3. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 4. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10, USC, section 1448, was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. //NOTHING FOLLOWS//